Opinion
No. 98-CA-2722.
April 14, 1999
APPEAL FROM CIVIL DISTRICT COURT, PARISH OF ORLEANS, NO. 94-2405, DIVISION "M", STATE OF LOUISIANA, HONORABLE ROLAND L. BELSOME, JUDGE
VINCENT J. GLORIOSO, JR, MARIA B. GLORIOSO, TERENCE S. ZIEGLER, THE GLORIOSO LAW FIRM, New Orleans, Louisiana, Attorneys for Plaintiff/Appellant
HARVEY J. GODOFSKY, MANG, BATIZA, GAUDIN, GODOFSKY PENZATO, Metairie, Louisiana, Attorney for Defendants/Appellees
(Court composed of Judge Moon Landrieu, Judge James F. McKay III, Judge
This appeal arises from a trial court's dismissal of a suit on the grounds that it was abandoned. We affirm.
FACTS
Following the proceedings of a Medical Review Panel, plaintiff, Hilda L. and Claude S. Williams, M.D., alleging claims of medical malpractice. Service of this suit was never requested nor made upon the defendants.
On June 10, 1996, plaintiff forwarded Requests for Admissions on defendant, Dr. Habig, through his attorney, Harvey Godofsky. This Request for Admissions was not filed in the record of the district court. Defendants did not respond to this request.
The defendants filed an ex parte motion of abandonment on July 1, 1998. This motion was granted and plaintiffs suit was dismissed. It is from this judgment that plaintiff appeals.
ISSUE
At issue is whether service of Requests For Admissions on a defendant not served with a petition for damages and who has not made a general appearance constitutes a step in the prosecution of the case interrupting the applicable abandonment time period.
DISCUSSION
According to Louisiana Code of Civil Procedure Article 561: "[a]n action is abandoned when the parties fail to take any step in its prosecution or defense in the trial court for a period of three years. . ." The article states further that "[a]ny formal discovery as authorized by this Code and served on all parties whether or not filed of record, including the taking of a deposition with or without formal notice, shall be a step in the prosecution or defense of an action." However, two appellate courts in this state have held that any steps taken to hasten a matter to justice are ineffective as to defendants not served. The First Circuit first pronounced this position in McClure v. A. Wilbert's Sons Lumber Shingle Co., 232 So.2d 879 (La.App. 1 Cir. 1970). It was subsequently followed in Murphy v. Hurdle Planting and Livestock, Inc., 331 So.2d 566 (La.App. 1 Cir. 1976), writ refused, 334 So.2d 434. In Wicker v. Coca-Cola Botthng Co., 418 So.2d 1378 (La.App. 5 Cir. 1982), this position was adopted by the Fifth Circuit. We agree with our Brethren in the First and Fifth Circuits that for purposes of abandonment of a lawsuit, any steps taken to hasten a matter to judgment are ineffective as to defendants not served and accordingly adopt this rule.
In the instant case, neither Dr. Habig nor Dr. Williams were ever served with the lawsuit. Over two years after plaintiff initially filed suit, Requests for Admissions were mailed to Dr. Habig's attorney. Neither Dr. Habig, nor Dr, Williams ever responded to this request or made a general appearance in the case. Some four years after plaintiff filed the lawsuit, Drs. Habig and Williams filed an ex parte motion of dismissal for abandonment. The trial court dismissed the suit as abandoned.
We find the trial court did not err in dismissing the suit. Now that we have adopted the rule followed by the First and Fifth Circuits that any step taken to hasten a matter to justice is ineffective as to defendants not served, the forwarding of the Request for Admissions to Dr. Habig's attorney was ineffective because Dr. Habig had never been served with the lawsuit. Consequently, more than three years passed between the time plaintiffs lawsuit was filed and when defendants filed their motion for dismissal. Accordingly, plaintiffs lawsuit was abandoned.
For the foregoing reasons we affirm the judgment of the trial court.
AFFIRMED
I do not agree with the majority's decision to adopt the position of the First and Fifth Circuits that any steps in the prosecution or defense of an action are ineffective as to parties who have not been served with the petition. This court has previously held that a motion to take the deposition of an unserved defendant was a "step" sufficient to preclude abandonment under La.C.C.P. art. 561. Landry v. Thomas, 422 So.2d 513 (La.App. 4th Cir. 1982), writ denied, 429 So.2d 143 (La. 1983).
I believe that any attempt at formal discovery, served by mail as authorized by the Code of Civil Procedure, is a step in the prosecution or defense of the action as contemplated by Article 561. The service of the Requests for Admissions in the instant case interrupted the running of the three-year time period necessary for abandonment. Accordingly, I would reverse the judgment of the trial court.
I therefore respectfully dissent.